There are two approaches in determining whether a felony is inherently dangerous for felony murder purposes. Under the first approach, the felony is examined in the abstract to determine whether it is inherently dangerous to human life. This "abstract approach" analyzes the elements of the underlying felony without regard to the particular facts of the case. The abstract approach involves a two-step process by which the court first examines the "primary element" of the offense at issue to determine whether it involves the requisite danger to life. The court then looks to the factors elevating the offense to a felony to determine whether the felony, taken in the abstract, is inherently dangerous to human life. Thus, under the abstract approach, the court decides as a matter of law whether a particular felony is inherently dangerous to human life.
An accused filed a petition for a writ of prohibition/mandamus directing a trial court judge to dismiss the felony-murder charges against the accused. The accused alleged that the predicate felony named in his indictment -- unlawful distribution of a controlled substance -- was not "clearly dangerous to human life," under Ala. Code § 13A-6-2(a)(3), so it could not support a charge of felony murder.
Should the petition to dismiss felony murder charges arising out of unlawful distribution of a controlled substance be granted the the distribution charge is not one that is "clearly dangerous to human life," for purposes of a felony murder charge?
The Court held that little law supported the argument that Alabama should use the abstract approach to determining whether unlawful distribution of a controlled substance was a felony which was "clearly dangerous to human life," for purposes of a felony murder charge. The fact-based approach was more logical and consistent with the evolution of felony murder in Alabama. The better approach was for a trier of fact to consider the facts and circumstances of the case to decide if this felony was inherently dangerous in the manner and the circumstances in which it was committed.